Funerals/access to buried cremains

Advertisement

Expert: Joseph Lucchese - 11/9/2012

QuestionFollowing the request of a dear friend, we buried his cremaited remains 12 years ago on a knoll overlooking his farm in upstate New York. They are in a pottery container, and the site is marked with a 1'x 2' flat granite marker. When the farm was sold, the purchaser agreed to allow us continued access. Now the farm is back up for sale. Can a new owner remove the cremains and dispose of them without our knowledge or consent? Or require that we remove them? Since the site is marked, is it implied that a new owner has notice of the site, and must continue to allow us a common law right of access, similar to family burial sites?
I guess I'm wondering to what degree buried cremains are regarded the same way and protected the way a burial plot would be.
I realize this raises an issue for anyone to consider if cremated remains are being kept somewhere other than a public cemetery: how will they be cared for in the long term? We did not think this through in advance, and must confront it now.

AnswerAnne-

Yours is a very complicated question that you may need to hire an attorney to answer. I'll try to do my best but unfortunately my ultimate answer is "I don't know" and I'm going to give you the telephone numbers to two state agencies that could help you.

In New York State the legal disposition of a body is at the crematory. Once the cremation takes place the state doesn't really get involved much concerning what family members do with cremains. So to answer one of your questions- no, buried cremains are not protected or regarded the same way as a burial plot would be- mostly because they aren't buried in a cemetery.

I'm assuming that the current owner of the property only gave you verbal permission to access the site and not written permission. If you do have written permission this should be presented to the new owner. However, I'm not even sure if the new owner would have to honor a written agreement between you and the current owner.

I don't think the new owner can remove the cremains- and I'm not sure why he would want to- but I am fairly certain that he could remove the marker if he wants to. But you may have a way out of all of this- but of course that depends on the current owner and the lay out of the property. New York State does recognize family cemeteries- but they do need to be registered with the state and the property would have to be purchased as such. There are also certain requirements the state has. So depending on where the cremains are located on the property you may be able to purchase back from the current owner that section of property. I cut and pasted the NYS law regarding family cemeteries below:

§ 1401. Private and family cemetery corporations.
#a# Private cemetery corporation. Seven or more persons may become a
private cemetery corporation by setting off for a private cemetery
enclosed real property, to the extent of not more than three acres, and
by electing at a meeting of the owners of the property so set off, at
which not less than seven shall be present, three of their number to be
directors, to hold office for five years. The chairman and secretary of
such meeting shall make, sign and acknowledge, and file in the office of
the clerk of the county in which such real property is situated, a
certificate containing the name of the corporation, a description of the
lands so purchased or set apart, and the names of the directors. No such
cemetery shall be located within one hundred rods of any dwelling-house
without the written consent of the owner thereof. Additional lands not
exceeding three acres may be acquired by a private cemetery corporation;
but no additional lands so purchased or otherwise acquired shall be used
for the purpose of burial within three hundred feet of any dwelling
without the written consent of the owner thereof.
#b# Removal of remains from private cemeteries to other cemeteries.
The supervisor of any town containing a private cemetery may remove any
body interred in such cemetery to any other cemetery within the town, if
the owners of such cemeteries and the next of kin of the deceased
consent to such removal. The owners of a private cemetery may remove the
bodies interred therein to any other cemetery within such town, or to
any cemetery designated by the next of kin of the deceased. Notice of
such removal shall be given within twenty days before such removal
personally or by certified mail to the next of kin of the deceased if
known and to the clerk and historian of the county in which such real
property is situated and notice shall be given to the New York state
department of state, division of cemeteries. If any of the deceased are
known to be veterans, the owners shall also notify the division of
veterans' affairs. In the absence of the next of kin, the county clerk,
county historian or the division of veterans' affairs may act as a
guardian to ensure proper reburial.
#c# Family cemetery corporations. Any person, by deed or devise, may
dedicate land to be used exclusively for a family cemetery. The
executors, administrators or trustees of a deceased person, with the
written authority of all of his surviving heirs, next of kin, devisees
and legatees, executed in person or by an attorney, or if infants, by
legal guardian, may dedicate lands of such deceased person exclusively
for a family cemetery, or may purchase with the funds of the estate,
suitable lands therefor. The land so dedicated shall not exceed three
acres, not be located within one hundred rods of a dwelling-house,
without the consent of the owner, unless such land, at the time of
dedication, is in actual use for burial or cemetery purposes within the
limits of a city. The instrument dedicating such land shall describe the
same, may appoint directors to manage such cemetery, prescribe, or
provide for making rules, directions or by-laws for such management,
direct the manner of choosing successors to the directors, specify their
qualifications, and grant to them and their successors money or personal
property as a fund for maintaining, improving and embellishing the
cemetery, in accordance with the deed or will, or the written authority
of the heirs, next of kin, devisees and legatees. The instrument
dedicating land for a family cemetery, together with the authority, if
any, of the heirs, next of kin, devisees and legatees of the deceased
person, shall be filed in the office of the county clerk of each county
in which the cemetery is to be situated. The directors before entering
on their duties, shall file in the office of the county clerk of each
such county, a written acceptance of their appointment; and thereupon
they and their successors shall constitute a corporation under the name
designated in such instrument. A fund created by will for the purpose of
maintaining, improving and embellishing such a cemetery shall not exceed
ten per centum of the net value of the estate of the testator. Such
corporation before receiving any property, money or funds for improving,
maintaining and embellishing the cemetery, shall execute to the
surrogate of the county in which such real property is situated, a bond
with sureties, or the bond of a surety company, approved by him, in a
penalty of twice the principal sum of the fund placed in charge of the
corporation, conditioned for the faithful preservation and application
thereof according to the rules, directions or by-laws prescribed in the
instrument under which the appointment of such directors was made, and
renew such bond or execute a new bond whenever required so to do by such
surrogate. At least once in each year and oftener if required by the
surrogate the corporation shall file with him a verified account of its
receipts and expenditures on account of the funds in its hands, or under
its control, together with vouchers for all disbursements. Any person
may bequeath or transfer to, and any such corporation may take, money or
personal property by will, deed or other transfer, upon trust, to hold
and apply to dispose of the same for the purpose of maintaining,
improving and embellishing any lot, plot or portion of such cemetery,
either according to the discretion of the directors, or for such time
and upon such terms and conditions, if any, as to the application,
investment and reinvestment of the principal and income and otherwise as
shall be stated in the instrument creating the trust as agreed upon, but
no such trust fund created by will shall exceed ten per centum of the
net value of the estate of the testator. The corporation shall give
security and account for such money or personal property as hereinbefore
provided.
If security is furnished by a surety company bond, the reasonable
expense thereof shall be a charge against the funds of the corporation.
#d# Type of corporation. A family or private cemetery corporation is a
type B corporation under this chapter.
#e# Private and family cemetery corporations; prohibitions. #1# No
private or family cemetery corporation shall, directly or indirectly:
#i# sell, or have, enter into or perform a lease of any of its real
property to a funeral entity, or use any of its property for location of
a funeral entity;
#ii# commingle its funds with a funeral entity;
#iii# direct or carry on its business or affairs with a funeral
entity;
#iv# authorize control of its business or affairs by a funeral entity;
#v# engage in any sale or cross-marketing of goods or services with a
funeral entity;
#vi# have, enter into or perform a management or service contract for
cemetery operations with a funeral entity; or
#vii# have, enter into or perform a management contract with any
entity, other than a not-for-profit cemetery corporation.
#2# Only the provisions of subparagraphs #i# and #ii# of subdivision
one of this paragraph shall apply to cemetery corporations with thirty
acres or less of real property dedicated to cemetery purposes, and only
to the extent the sale or lease is of real property dedicated to
cemetery purposes, and such cemeteries shall not engage in the sale of
funeral home goods or services, except if such goods and services are
otherwise permitted to be sold by cemeteries.
#3# For the purposes of this paragraph, "funeral entity" means a
person, partnership, corporation, limited liability company or other
form of business organization providing funeral home services, or
owning, controlling, conducting or affiliated with a funeral home, any
subsidiary thereof or an officer, director or stockholder having a ten
per centum or greater proprietary, beneficial, equitable or credit
interest in a funeral home.

I know this is alot to absorb- and I wish I had a clear cut answer for you. I'm going to give you the telephone numbers to two state agencies. The first is the New York State Department of Health's Bureau of Funeral Directing. The director is Deborah Orecki and her number is #518# 402-0785.

The second is the NYS Division of Cemeteries. Richard Fishman is the director and the telephone number there is #518# 474-6226.

I would start with the Bureau of Funeral Directing since the land is not set aside as a cemetery the Division of Cemeteries they will most likely tell you that they don't have any authority over this.

Please let me know what the outcome is.

Joe

Questioner's Rating

Rating(1-10)

Knowledgeability = 9

Clarity of Response = 10

Politeness = 10

Comment

This response went "above and beyond" in its depth and thoroughness. Although well providing the caveat of the need for an attorney, he gave a solid overview of the state law and the specific contact information on where to follow up. On top of all that -- it was barely a 12-hour turnaround time.